by Sarah Stuart

Just prior to the end of the year, Congress provided new economic relief in response to the COVID-19 pandemic that modified the mandates and benefits available for employers and employees alike through the CARES Act.  We look here to what expired and what was extended from two key programs—leave through the Families First Coronavirus Response Act (FFCRA) and expanded unemployment insurance benefits.

Voluntary FFCRA Leave

Significantly, the new relief package did not mandate an extension of the FFCRA into 2021—meaning employers are no longer mandated to provide emergency paid sick leave or expanded family and medical leave for COVID-19 related reasons. As a compromise, Congress extended the employer payroll tax credit through the first quarter of 2021 for any leave voluntarily provided under the same provisions as the FFCRA.  Simply put, while the FFCRA is no longer mandated, employers may voluntarily continue to offer paid sick leave and expanded FMLA leave and obtain full reimbursement by taking advantage of the payroll tax credit through the first quarter of this year.

Without the obligation to continue to provide paid leave, employers may wonder whether to provide any leave entitlement to their employees.  Employers considering whether to take advantage of the voluntary tax credit in the first quarter of 2021 for paid leave should consider a few key issues:

  • Time taken under voluntary FFCRA leave in the first quarter of 2021 will not count toward the employee’s federal FMLA entitlement.
  • For the payroll tax credit, an individual’s maximum entitlement to paid leave remains 80 hours paid sick leave and 10 weeks of expanded FMLA between April 2020 through March 2021. No additional tax credit is available for leave provided to individual employees that exhausted FFCRA leave in 2020.
  • Regardless of whether the employer opts into paid leave, federal and state obligations remain, including considering whether the employee otherwise qualifies for FMLA leave or may be eligible for accommodations for lingering symptoms under the Americans with Disabilities Act.
  • Employers will need the same documentation for reimbursement for voluntary FFCRA leave as under the mandatory FFCRA leave.

The Department of Labor has cautioned employers to ensure payment is made on any wages owed on all FFCRA leave from April 1, 2020 through December 31, 2020.  Employees that are out on FFCRA leave should receive clear communication if the employer is going to decline to opt into the voluntary refundable employer payroll tax credit in the first quarter of 2021.

Finally, employers should consider that opting into voluntary FFCRA leave will assist in avoiding spread of COVID-19 in the workplace and assist employees in recuperating and safely returning to work, particularly as COVID-19 cases continue to rise and many school programs return to or remain virtual.

Unemployment Insurance Programs

In the new stimulus package, the federal government also extended previous supplemental unemployment benefits. Specifically, the bill authorized an additional 11 weeks of unemployment eligibility, through March 14, 2021.  The CARES Act previously provided an extra 13 weeks of unemployment eligibility through December 31, 2020, ordinarily capped at 26 weeks per 12 month period.  Thus, claimants who have exhausted unemployment insurance benefits in 2020 will have an additional 11 weeks of benefits available to them in 2021.

The bill also authorized a federal supplement of $300 per week in unemployment benefits in addition to state benefits, at no cost to employers.  Finally, the bill extended through March 14, 2020 the Pandemic Unemployment Assistance (PUA) program, which has temporarily expanded regular eligibility for unemployment insurance to self-employed workers, independent contractors, part-time employees, and other individuals who are unavailable to work due to “COVID-19 related reasons.”  These provisions are simply an extension of the prior expanded eligibility rules for unemployment benefits under the CARES Act.

Possible Upcoming Developments

With the administration change in the federal government, we anticipate that additional changes and legislation for economic assistance may develop.  For example, the new Congress will likely take up the matter of additional stimulus payments directly to qualifying individuals, and we will likely see legislation extending unemployment benefits further.  Bipartisan consensus is also developing around requiring employers to accommodate pregnant employees by, for example, providing more frequent breaks, and creating a national paid leave program similar to the FFCRA.  Changes to the makeup of federal agencies like the EEOC and the NLRB are already taking place, with the resulting rollback of previous positions in favor of ones that are more employee- and union-friendly.  We can also expect the Department of Labor to go back to the drawing board on regulations defining who is a joint employer and who is an independent contractor.

As always, the attorneys at Burch, Porter & Johnson, PLLC will keep you informed of new developments in employment and labor law.

by Jennifer S. Hagerman

A company may require its employees to be vaccinated for COVID-19, but the policy must include exceptions for disabilities and religious beliefs.  Even though an employer may make the vaccine mandatory, it does not mean that is the best course of action.  Most employers are stopping short of a mandatory vaccine and focusing on “strongly encouraging” employees to get the vaccine for several reasons.  First, the vaccine is new and not currently widely available.  It is unclear when the vaccine will be available to everyone (current estimates range from 6 months to 3 years).  Second, with all the misinformation about vaccines in general and this vaccine in particular available on the internet, there is a risk that a significant portion of employees may refuse the vaccine without a valid legal reason, thereby forcing the employer to make the painful decision about whether to terminate those employees in order to enforce the policy.  Third, tracking compliance with a vaccine requirement will be administratively burdensome, due in part to the exceptions discussed below, and poses certain logistical challenges.  Finally, administering the vaccine requires gathering confidential medical information, which employers are prohibited from gathering unless the inquiries are work related or consistent with a medical necessity, so a company’s best course of action is to rely on third parties to administer the vaccine.  If an employer elects to strongly encourage employees to get the vaccine rather than making it mandatory, then one option is to provide incentives for employees to get the vaccine, such as covering any out-of-pocket costs involved and giving them paid time off to receive the vaccine and recover from any possible side effects.

If an employer decides to require the vaccine, then we strongly recommend the adoption of a written policy that clearly sets forth the process for addressing objections to receiving the vaccine by individuals with disabilities under the Americans with Disabilities Act and for religious reasons under Title VII of the Civil Rights Act.  If an employee cannot be vaccinated due to a disability, then the company is required to first determine whether the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.  This will require reviewing the employee’s position and job duties and determining what accommodations, if any, could be made to allow the unvaccinated employee to continue to work.  If, after careful consideration of all the possible accommodations available, like wearing a mask or moving to an open job in which the employee would not pose a direct threat,  the employer determines that there is no accommodation available that would eliminate the direct threat, the employer has the ability to terminate the employee.  If the employee refuses to be vaccinated due to a sincerely held religious belief, practice or observance, then the employee’s objection should be addressed under the same analysis as with disabilities, unless the accommodation places an undue hardship on the employer.  The religious exception does not include objections based on an employee’s belief that the vaccine will place him under government control, or that the vaccine is not effective, is unsafe, or hasn’t been sufficiently tested.  An employee who does not have a legally recognized reason to refuse the vaccine but still refuses may be terminated.

It is important to note that the vaccine policy must apply to all employees, so employers are encouraged to ensure that all the key employees are willing to get the vaccine.  Employers may not make exceptions other than for religious and medical reasons as discussed above.  For example, if an employer makes an exception for one high level key white male employee who does not have a disability or religious basis to refuse the vaccine, then it would have to make exceptions for other employees.  Finally, if employees are covered by a collective bargaining agreement (CBA), then a mandatory vaccination would be a condition of employment that may need to be the subject of bargaining with the union.  Please let us know if our employment law team may assist your company with any questions or concerns regarding COVID-19 vaccine policies or procedures.

by Lisa A. Krupicka

The nation has been shaken by the events at the Capitol on January 6, 2021, as a large crowd of demonstrators violently clashed with the Capitol Hill police and forced their way into the Capitol building while Congress was in session, causing widespread physical damage and personal injury and necessitating the emergency evacuation of members of Congress and their staff in order to keep them safe.  After the riot was brought under control, many employers had only to follow the news or social media to find that some of the rioters were their employees.

It’s easy enough to fire an employee for committing a crime, but what about other employees who were not physically present but espouse, often loudly and publicly, the same views that spurred on the rioters?  Employers need to know what they can and cannot do to address this growing concern in many workplaces.  Here are some frequently asked questions:

Q:     Does firing an employee for advocating the violent overthrow of the government violate the employee’s free speech rights?

A:      No.  Advocating for the violent overthrow of the government is actually a federal crime and is not protected by the First Amendment.  So even for public employers, whose decision to terminate an employee may implicate free speech rights, there is no protection for such conduct.

Q:      What about speech that may not explicitly call for the violent overthrow of the government, but falsely accuses government officials of subverting the voting process to deny President Trump re-election?

A:      For public employers, the First Amendment requires an analysis of whether the speech in question is made by the employee as a citizen in furtherance of the discussion about a matter of public concern.  If so, the employee’s free speech rights will be implicated and employers risk legal exposure for a termination based solely on the employee’s statements on this topic, even if the employee’s statements are false.

For private employers, a termination decision based on something an employee says never implicates free speech rights because the language of the First Amendment, i.e., “Congress shall make no law … abridging the freedom of speech,” refers only to decisions made by the government, not private employers.  Private employers are constrained by the “concerted activity” provision of the National Labor Relations Act (NLRA), but falsely claiming the election was stolen does not relate to working conditions or labor organization and so would not be protected.  Whether it’s a good idea or not is discussed in more detail below.

Q:      I have an employee that is completely obsessed with the “Q Anon” conspiracy, talking about it frequently at work and posting about it during working time.  Can I tell the employee to stop and fire him if he won’t?

A:      Yes.  Employees who spend a noticeable amount of working time doing non-work activities can be disciplined or terminated if they will not stop engaging in the non-work activities.

Q:      What if an employee doesn’t talk about Q Anon at work or post about it during working time, but I’ve learned that she is preoccupied with it on social media during her non-working hours?

A:       In theory, there is nothing in the law that prevents a private employer for making a value judgment about what an employee says on social media (outside of topics protected by the NLRA) and then acting on that judgment, but an employer that is considering doing so should think long and hard about it.  For the most part, it is frankly none of an employer’s business what its employees think or do outside of work and the employer must have a pretty good business reason to discipline or terminate an employee for such behavior if it wants to keep a talented and engaged work force.  Moreover, there is plenty of speech that is so closely identified with an employee’s race, sex, religion, national origin, or other protected characteristic that punishing an employee for that speech can be tantamount to discrimination or retaliation.

On the other hand, topics like Q Anon do not implicate the protected characteristics of any employee and there is a fairly widespread public consensus that it has become a dangerous and destructive force in our nation.   If an employee’s social media presence is also closely tied with his identity as an employee of your company, there may be a valid business reason to address such conduct.  But if the employee merely posts about it a lot on his own time, an employer must decide if it wants to put itself in the position of policing employees’ private conduct, whether it be “work the plan,” “stop the steal,” or some other controversial topic, a time-consuming and potentially risky business to wade into.

The employment team at Burch, Porter & Johnson is here to answer any questions you may have about employee speech in and out of the workplace.